FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by

FINAL DECISION

 

 

Ken Byron and The Hartford Courant,

 

 

 

Complainants

 

 

 

against

Docket #FIC 1996-572

 

 

Chief of Police, Town of Wethersfield

 

 

 

Respondent

November 12, 1997

 

 

            The above-captioned matter was heard as a contested case on April 7, 1997, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.  The respondent is a public agency within the meaning of §1-18a(a), G.S.

 

2.  By letter dated October 24, 1996, the complainants requested that the respondent provide them with a copy of the personnel file of Brigid McCarthy and any other documents relating to her employment as a police officer and the personnel file of former police officer Susan Johnson.

 

3.  By letter dated November 5, 1996, the respondent’s counsel advised the complainants that McCarthy had objected to disclosure of her personnel file and that the respondent had been unable to determine whether Johnson objected to disclosure of her personnel file.  The respondent further claimed that disclosure of the requested personnel files would constitute invasions of personal privacy and therefore denied the complainant’s request.

 

4.  By undated letter filed with the Commission on November 15, 1996, the complainants appealed the respondents denial of access to the requested records.

 

5.     It is found that McCarthy and Johnson were no longer employed by the Wethersfield Police Department at the time of the complainants’ request.  It is further found that McCarthy filed a written objection to disclosure of her personnel file on October 30 1997, and Johnson objected to disclosure of her personnel file on November 30, 1997.  However neither McCarthy nor Johnson appeared at the hearing on this matter.

6.     It is found that the requested records are public records within the meaning of §§1-18a(d) and 1-19(a), G.S.

 

7.  The respondent claims that he made a determination that disclosure would constitute an invasion of the officers’ privacy under §1-19(b)(2), G.S., and would also compromise the ability of the police department to obtain candid information from third parties during the hiring process.

 

8.  Section 1-15(a), G.S., provides in relevant part, that “any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

9.  However, §1-19(b)(2), G.S., does not require the disclosure of “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.”

 

10.  In Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993), the Supreme Court set forth the test for the exemption contained in §1-19(b)(2), G.S.  The claimant must first establish that the files in question are personnel, medical or similar files. Second, the claimant must show that disclosure of the records would constitute an invasion of personal privacy. In determining whether disclosure would constitute an invasion of personal privacy, the claimant must establish both of two elements: first, that the information sought does not pertain to legitimate matters of public concern, and second, that such information is highly offensive to a reasonable person.

 

11.  The respondent submitted the requested records to the Commission for in camera inspection, which files have been identified as in camera document #s 1996-572-1 - 1996-572-25, inclusive.

 

12.  It is found that the records submitted to the Commission for in camera inspection constitute personnel, medical or similar files within the meaning of §1-19(b)(2), G.S.  An analysis of whether the subject records are exempt from disclosure under the second prong of the §1-19(b)(2), G.S., is set forth below.

 

THE MCCARTHY RECORDS

 

13.  It is found that the subject records pertaining to McCarthy consist of thirteen separate multiple-page records, identified in the following manner: McCarthy Police Academy (1996-572-1), McCarthy Application for Employment and Investigation 1996-572-2), McCarthy Field Training Reports (1996-572-3 through 1996-572-7, inclusive), McCarthy Performance Evaluations (1996-572-8), McCarthy Accident (1996-572-9), McCarthy Firearm Training (1996-572-10), McCarthy Probationary Termination (1996-572-11), Hafner Memo re:  Meetings with McCarthy (1996-572-12), McCarthy Unemployment Compensation Records (1996-572-13).

 

14.  With respect to those portions of the records contained in in camera document #1996-572-2 concerning McCarthy’s bank account and financial obligations, medical information, birth certificate, polygraph and psychological evaluation, it is found that disclosure of such information would be highly offensive to a reasonable person and that such information does not pertain to a matter of legitimate public concern.  Consequently, such portions of these records are not subject to disclosure under §1-19(b)(2), G.S.

 

15.  With respect to all other portions of the records identified in paragraph 14, above, and all other records contained in in camera document #1996-572-2, it is found that the contents of such records would not be highly offensive to a reasonable person and, because the public has a legitimate interest and concern in knowing about the fitness of police personnel, their suitability for the kind of public employment that requires a significant amount of public trust, and whether candidates for police officer positions are properly and thoroughly tested and fairly treated during the testing process, such records are not exempt from disclosure under §1-19(b)(2), G.S.

 

16. With respect to those records contained in in camera document #s 1996-572-1, 1996-572-3 - 1996-572-10, inclusive, and 1996-572-12 - 1996-572-13, inclusive, it is found that although portions of such records contain information that is critical of McCarthy’s performance as a probationary police officer, which information might be highly offensive to a reasonable person, much of the information contained therein is not highly offensive.  Further, the contents of such records, in their entirety, for the same reasons set forth in paragraph 15, above, pertain to matters of legitimate public concern.  Consequently, such records are not exempt from disclosure under §1-19(b)(2), G.S.

 

17.  With respect to the records contained in in camera document #1996-572-11, it is found that only one record pertains to McCarthy.  All other records included within this document number pertain to other police officers, and do not fall within the scope of the complainants’ request.  With respect to the one record pertaining to McCarthy, it is found that disclosure of such record would not be highly offensive to a reasonable person and, for the same reasons set forth in paragraph 15, above, pertain to matters of legitimate public concern. Consequently, such record is not exempt from disclosure under §1-19(b)(2), G.S.

 

THE JOHNSON RECORDS

 

18.  It is found that the requested records pertaining to Johnson consist of twelve separate multiple-page records, identified in the following manner: Johnson Training File (#1996-572-14), Johnson Field Training Reports (#1996-572-15 through 1996-572-19, inclusive), Johnson Performance Evaluations (#1996-572-20), Johnson Application for Employment and Investigation (#1996-572-21), Johnson Personnel Action (#1996-572-22), Miscellaneous Memos (#1996-572-23), Johnson Unemployment Compensation Records (#1996-572-24); and Johnson Naval Records (#1996-572-25).

19.  With respect to the records contained in in camera document #s 1996-572-14 - 1996-572-17, inclusive, 1996-572-19, and 1996-572-24 - 1996-572-25, inclusive, it is found that although portions of such records contain some information that is critical of Johnson’s performance as a probationary police officer, which information might be considered highly offensive to a reasonable person, much of the information contained therein is not highly offensive. Further, the contents of such records, in their entirety, for the same reasons set forth in paragraph 15, above, pertain to matters of legitimate public concern.  Consequently, such records are not exempt from disclosure under §1-19(b)(2), G.S.

 

20.  It is found that  in camera  document #1996-572-18 contains some  information under the heading “Personal Level” about Johnson’s home life and personal relationship while off-duty, and that disclosure of such information would be highly offensive to a reasonable person and such information does not pertain to a matter of legitimate public concern.  Consequently, that portion of those records are not be subject to disclosure under §1-19(b)(2), G.S.  The remaining portions of the records contained in in camera document #1996-572-18, however, are not exempt from disclosure under §1-19(b)(2), G.S., for the same reasons set forth in paragraph 15, above.

 

21.  With respect to those portions of the records contained in in camera document #s 1996-572-20 - 1996-572-22, inclusive, concerning Johnson’s bank account, financial obligations and insurance, medical information (including information about the illness of another person), birth certificate, polygraph, and psychological evaluation, it is found that disclosure would be both highly offensive to a reasonable person and that such information does not pertain to a matter of legitimate public concern.  Consequently, such portions of these records are not subject to disclosure under §1-19(b)(2), G.S.

 

22.  With respect to all other portions of the records identified in paragraph 20, above, and all other records contained in in camera document #s 1996-572-20 - 1996-572-22, inclusive, it is found that although such records also contain some information that is critical of Johnson’s performance as a probationary police officer, which information might be considered highly offensive to a reasonable person, much of the information contained therein is not highly offensive. Further, the contents of such records, in their entirety, for the same reasons set forth in paragraph 15, above, pertain to matters of legitimate public concern.  Consequently, such records are not exempt from disclosure under §1-19(b)(2), G.S.

 

23.  It is found that in camera document #1996-572-23, contains a two-page memorandum dated May 4, 1994 prepared by Lieutenant James L. Cetran.  It is found that the disclosure of such memorandum would be highly offensive to a reasonable person and further, that under the facts of this case, disclosure is no longer a matter of legitimate matter of public concern.  Consequently, the memorandum is not subject to disclosure under §1-19(b)(2), G.S.

24.  With respect to all other portions of the records contained in in camera document # 1996-572-23, it is found that the contents of such records are not highly offensive to a reasonable person and, for the same reasons set forth in paragraph 15, above, pertain to matters of legitimate public concern.  Consequently, such portions of these records are not exempt from disclosure under §1-19(b)(2), G.S.

 

25.  With respect to the respondent’s claim that disclosure of the subject records would compromise the ability of the police department to obtain candid information from third parties interviewed during the hiring process, it is found that in this case the information supplied by third parties during the pre-employment process is not highly offensive and pertains to a legitimate matter of public concern, and that disclosure in this case would not hinder the respondent’s ability to obtain candid information in the future in connection with the hiring process.

 

26.  It is therefore concluded that the respondent violated the Freedom of Information Act by failing to provide the complainants with a copy of those portions of the subject records that are not exempt from disclosure under §1-19(b)(2), G.S., which records are therefore subject to disclosure under the provisions of §1-15(a), G.S.

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

1.  The respondent shall forthwith provide the complainants with a copy of in camera document #s 1996-572-1, 1996-572-3 - 1996-572-10, inclusive, 1996-572-12 - 1996-572-17, inclusive, 1996-572-19 and 1996-572-24 - 1996-572-25, inclusive, in their entirety.

 

2.  The respondent shall also forthwith provide the complainants with a copy of the remaining in camera documents, with the following exceptions:  1996-572-2 (redact all of the exempt information, as described in paragraph 14, of the findings, above); 1996-572-11 (redact or withhold records pertaining to other officers, as described in paragraph 17, of the findings, above); 1996-572-18 (redact all of the exempt information, as described in paragraph 20, of the findings, above); 1996-572-20 - 1996-572-22, inclusive (redact all of the exempt information as described in paragraph 21, of the findings, above); and those portions of 1996-572-23 described in paragraph 23, of the findings, above.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 12, 1997.

 

 

 

 

__________________________

Doris V. Luetjen

Acting Clerk of the Commission

 

 

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

 

Ken Byron and The Hartford Courant

c/o Matthew Brown

40 South Street

New Britain, CT 06051

 

Chief of Police

Town of Wethersfield

c/o John Bradley

Rome McGuigan Sabanosh, P.C.

One State Street

Hartford, CT 06103-3101

 

 

 

 

 

__________________________

Doris V. Luetjen

Acting Clerk of the Commission

 

 

 

 

 

 

FIC1996-572/FD/tcg/11121997